James Anthony Carter, Jr., the Claimant herein, alleges in Claim number 104374
that defendant's agents failed to provide him with adequate and timely medical
care when he was an inmate at Sing Sing Correctional Facility (hereafter Sing
Sing). Trial of the matter was held at Sing Sing on December 17, 2002 and
January 30, 2003.
At the trial, Claimant testified concerning the facts alleged in the Claim, and
expanded upon them, addressing his alleged physical complaints over a period
from 1995 to the present. The main thrust of the Claim, filed on June 4, 2001,
is that Defendant failed to consider Claimant's medical history of facial
trauma, continued complaints of dizziness, headache, ringing in the ears and
pain, among other things, in order to arrive at a proper course of treatment for
his complaints, and such failure to find a proper course of treatment has
resulted in hearing loss. He asserts that he has now been diagnosed with
temporal mandibular joint disorder (hereafter TMJ), and that the symptoms he
presented should have alerted medical personnel to the possibility of this
condition. Instead, Defendant chose to treat him for various sinus conditions
and/or attributed his complaints to some kind of mental disorder. In the Claim,
the specific date such failures are alleged to have precipitated his past and
present pain and suffering is April 17, 2001. [
, Claim No. 104374, ¶2].
Claimant stated that on April 17, 2001 he saw Dr. E. Fagin, an employee of the
New York State Department of Correctional Services (hereafter DOCS), complaining
of "headache, dizziness and fatigue."
This visit is confirmed by the Claimant's ambulatory health record (hereafter
AHR) for that day. [Claimant's Exhibit 1, State's Exhibit "C"]. These were not
new complaints, as evidenced by the AHR for previous years, and the testimony
of Claimant, Dr. Mikalus Halko, and Dr. John Perilli. In the DOCS consultation
request, Dr. Fagin asked that a Cat Scan be performed, and noted the Claimant's
complaints of dizziness and headaches for "6 yrs", and previous work-ups
including an MRI of the brain, sinus Cat Scans, previous neurological
consultations, and consultations with ear, nose and throat (hereafter ENT)
specialists. [Claimant's Exhibit 1, State's Exhibit D]. The AHR for April 17,
2001, indicates that Dr. Fagin conducted a physical examination of Claimant.
[Claimant's Exhibit 1 and 2].
Claimant testified that in or about July, 1975 when he was 11 years old, his
head, nose and jaw were injured when he was playing with fireworks. He indicated
that in February, 1995, after he had been incarcerated with DOCS since 1991, he
first experienced headaches, dizziness and fatigue. The Court notes that in a
neurological consultation report, dated November 2, 1995, the initial request by
the then treating physician for a neurological consultation indicates that
Claimant was complaining of feeling "unbalanced" for a four to five-month
period, and had been given a Cat Scan of his head in April of that year.
[Claimant's Exhibit 1]. A comprehensive medical history taken by the consulting
neurologist notes the firecracker accident.
. The history includes the details offered by Claimant that he had
placed the firecracker into a 55-gallon drum containing residual chemicals, and
it had blown up in his face, fracturing his skull, jaw and nose, causing him to
lose all his teeth, and resulting in many surgeries. [Id]
. The history
of head trauma is listed elsewhere in the 1995 AHR, as are complaints of
dizziness and vertigo. For example, a report from the Erie County Medical Center
Department of Electroencephalography dated June, 1995, and marked as received
by Attica Correctional Facility Health Services on July 5, 1995, notes the
complaints and the history. [Id].
The AHR for 1995 - where legible -
shows complaints in June, July, August, September, October, November, and
December concerning headaches, lack of balance, earaches, plugged ears and sinus
congestion, in addition to many other complaints, including stomach pains, back
pain, chest pain, constipation, and gum problems. [Claimant's Exhibit 1]. He
appears to have been treated for complaints related to a hernia as well in May,
In the following years, Claimant was seen by medical personnel at least 3 times
per month, and generally more frequently, as documented until June 8, 2001 when
the AHR admitted in evidence ends.
. Treatment for a cyst in his eye, surgery on his septum, asthma, a
knee injury and foot problems are also documented in the AHR. [Id]
Throughout the period commencing in 1995 to the present a considerable number of
consultations with outside specialists, including neurologists, ENT specialists,
audiologists, ophthalmologists, and radiologists are also
Dr. Mikalus Halko, one of Claimant's treating physicians at Sing Sing
commencing sometime in 2001, testified concerning his treatment of Claimant. He
stated he saw Claimant for a "foot problem in 2001," and on or about May 8, 2002
had requested an outside consultation for clearance for a hearing aid.
[Claimant's Exhibit 2]. Dr. Halko testified that he observed "multiple scars on
[Claimant's] tympanic membrane, probably due to some previous illness, in both
ears." He stated that from the little he knew about TMJ it only "rarely affects
the ears." Dr. Halko was aware of Claimant's "history of facial trauma", and
could not recall when Claimant actually received hearing aids. The record
appears to indicate he was fitted for hearing aids in September, 2002. [State's
Dr. John Perilli, the Facility Health Services Medical Director at Sing Sing
since January, 1999, also testified. At Dr. Fagin's request, Dr. Perilli saw
Claimant on April 18, 2001. Reading from the AHR notes for that day, Dr. Perilli
stated he himself did not conduct a physical examination of the Claimant, but
rather in his role as a consultant to Dr. Fagin, he reviewed the history and the
recommendation that a further Cat Scan of the brain be performed. From Dr.
Fagin's physical examination and notes, he could see that the Claimant had been
complaining of headache and dizziness and fatigue. Given these presenting
symptoms and history, Dr. Fagin gave what Dr. Perilli described as a "reasonably
comprehensive physical." Dr. Fagin found the tympanic membranes were clear and
Claimant's eye reflexes were found to be normal. He examined Claimant's neck,
and the cranial nerves as well. The notes indicate the Claimant's frustration at
not finding out what is wrong with him, as well as the physician's notation that
the patient has had the same complaints for more than 7 years. There is a
suggestion that depression be ruled out.
Dr. Perilli stated that "when the clinical conclusion from all examinations and
tests is negative", nothing further can be done. Indeed, it appears that the
witness confirmed Dr. Fagin's request for the additional brain Cat Scan, but it
was denied. He then chose to not contest the denial since it confirmed his
Claimant filed a facility grievance concerning the denial of the outside
consultation. [Claimant's Exhibit 19]. The Superintendent denied the grievance,
on May 15, 2001, indicating that "[i]nvestigation found that grievant's medical
condition does not indicate a need for a specialist appointment. Grievance
denied with explanation that he should utilize sick-call to follow-up."
. The Central Officer Review Committee (hereafter CORC) decided
Claimant's appeal of the Superintendent's decision on July 11, 2001.
. Claimant had indicated in the "action requested" portion of the
CORC form, that he wants Dr. Fagin to "...stop ignoring and procrastinating
grievant's (serious) problem, and find out what's causing the pain and
discomfort, before it [gets] too late and the cause of the problem, once it's
discovered, becomes irreversible." [Id].
The CORC indicated that the
grievance was "accepted only to the extent that CORC upholds the determination
of the Superintendent for the reasons stated. CORC notes from additional
investigation that the grievant has been referred for an ophthalmology
consultation and is scheduled to be seen in the near future." [Id]
Dr. Perilli indicated he himself, and other physicians, examined Claimant after
April, 2001, and that numerous audiology tests were performed as well. He noted
that audiology tests, generally, must rely on the subjective indications of the
patient as to whether a certain sound is heard.
On March 5, 2002, Dr. Perilli's own physical examination of Claimant revealed
"mild scarring" in his ears. [Exhibit D]. He stated that one cannot look at a
scar and judge its age - "it could be forming for decades; it could have been
the result of an injury at the age of 10." It was "not medically possible that
between April 17, 2001 and March 5, 2002 either an inner ear infection or
anything else could have caused scarring to come about on March 5, 2002...it's a
slow process...[it] could be a chronic condition that is building up and
eventually a scar forms." Dr. Perilli stated that when a patient presents
himself to a physician with certain subjective complaints, all that a physician
can do is conduct appropriate tests to try to figure out what is wrong. It is a
process of ruling out possibilities. With respect to hearing loss, Dr. Perilli
noted there are generally two types: (1) conduction problems and (2) nerve
problems. Based on the records, Claimant's hearing loss was not related to
nerve problems. There appeared to be some kind of chronic conductive problem
perhaps related to noise exposure.
From the record, Dr. Perillli could also see that on or about July 10, 2002,
Dr. Moscatelli, an ENT specialist who examined Claimant, indicated among his
impressions that Claimant might have TMJ. [Claimant's Exhibit 8]. The witness
noted that an examining oral surgeon disagreed with that impression. Dr.
Perilli described TMJ as a "mixed bag diagnosis that is poorly understood. It
is not linked to any etiology. It may be stress, it may be a jaw disorder, but
it is essentially a disorder of mastication." In a consult with Dr. Moscatelli
in October, 2002 there is a notation that examination shows "click &
tenderness ® TMJ." [Exhibit 3].
Dr. Perilli also reviewed for the Court the series of outside consultations
Claimant underwent from 1995 to the present, and discussed the difficulty of
achieving a conclusive diagnosis based upon the multitude of symptoms presented
by Claimant. As noted earlier, the record reflects visits to specialists
throughout this period. [
, Exhibit D].
Almost parenthetically, Claimant appears to also allege that there was some
delay in treating a cyst on his upper right eyelid. The medical records show
that some treatment was given.
The Court has also reviewed all the exhibits presented by Claimant and the
, Claimant's Exhibits 1 through 27; State's Exhibits A
through D]. No other witnesses testified.
It is "fundamental law that the State has a duty to provide reasonable and
adequate medical care to the inmates of its prisons," including proper diagnosis
Rivers v State of New York
, 159 AD2d 788, 789 (3d Dept 1990), lv
, 76 NY2d 701 (1990).
In a medical malpractice claim, the Claimant has the burden of proof and must
prove (1) a deviation or departure from accepted practice and (2) evidence that
such deviation was the proximate cause of the injury or other damage. A cause
of action is premised in medical malpractice when it is the medical treatment,
or the lack of it, that is in issue. A Claimant must establish that the medical
care giver either did not possess or did not use reasonable care or best
judgment in applying the knowledge and skill ordinarily possessed by
practitioners in the field. The " ‘claimant must [demonstrate]... that
the physician deviated from accepted medical practice and that the alleged
deviation proximately caused his...injuries' (
Parker v State of New York
, 242 AD2d 785, 786...)." Auger v State of
, 263 AD2d 929, 931 (3d Dept 1999). Without such medical proof, no
viable claim giving rise to liability on the part of the State can be sustained.
Hale v State of New York
, 53 AD2d 1025 (4th Dept 1976), lv denied
40 NY2d 804 (1976). A medical expert's testimony is necessary to establish, at a
minimum, the standard of care. Spensieri v Lasky
, 94 NY2d 231
If a claim can be read to allege simple negligence, or medical negligence, then
the alleged negligent omissions or acts by the State's employees can be readily
determined by a fact finder using common knowledge without the necessity of
Coursen v New York Hospital-Cornell Med. Center
, 114 AD2d 254, 256 (1st
Dept 1986). Similarly, the State may be found liable for ministerial neglect if
its employees fail to comply with an institution's own administrative procedures
and protocols for dispensing medical care to inmates. Kagan v State of New
, 221 AD2d 7, 10 (2d Dept 1996).
In this case, the question of the kind of care afforded is clearly one based on
malpractice theories. Although Claimant argued that he was presenting a claim
for "negligence and medical indifference", in order to establish this kind of
claim Claimant needed to show how Defendant's agents violated their own
procedures, or that the alleged negligence could be perceived without the
assistance of expert testimony. On the one hand, are the Claimant's subjective
complaints over a period of time, and the frustration he clearly feels at the
Defendant's alleged "failure" to find out what was wrong. On the other hand -
based upon the plethora of medical evidence submitted - is a track record of
visits to medical personnel, and the credible testimony of two physicians as to
the attempts to alleviate whatever immediate complaints the Claimant had over
time, as well as to discover what - if any - was the root cause. It is clear
that even now there continues to be dispute as to what Claimant's medical issues
In terms of establishing
that a claim of malpractice should lie, no competent medical
evidence has been presented through an expert opinion to establish the standard
of care applicable, and causation, between any alleged breach of the standard of
care and any harm suffered. Accordingly, reading the cause of action as one
asserting malpractice, it must be dismissed.
Additionally, from this record there is no indication that the actions of
medical care givers amounted to simple negligence or ministerial neglect.
Coursen v New York Hospital-Cornell Med. Center
; Kagan v
State of New York
, supra; cf. Jacaruso v State of New York
Claim No. 97721, Lebous, J., filed September 9, 2002. To the extent the claim
can be read to assert such theories, any cause of action for negligence or
ministerial neglect is also dismissed.
The Defendant's motion to dismiss for failure to establish a
case, upon which decision was reserved at the time of trial,
is hereby granted, and Claim Number 104374 is dismissed in its entirety. Any
motions not otherwise disposed of are hereby denied.
Let Judgment be entered accordingly.